Citation Nr: 1306382	
Decision Date: 02/25/13    Archive Date: 03/01/13

DOCKET NO.  12-10 844	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), anger issues, depression, mood swings, anxiety, major depressive disorder, panic attacks and a sleep disorder.  

2.  Entitlement to service connection for psychosis for the purpose of establishing eligibility to treatment.  

3.  Entitlement to service connection for a neck condition.  

4.  Entitlement to service connection for chronic bronchitis.  

5.  Entitlement to service connection for chronic obstructive pulmonary disease (COPD).  

6.  Entitlement to service connection for sinus and allergy problems.  

7.  Entitlement to service connection for a left knee condition.  

8.  Entitlement to service connection for a right knee condition.  

9.  Entitlement to service connection for bilateral hearing loss.  

10.  Entitlement to service connection for tinnitus.  

11.  Entitlement to service connection for a right shoulder condition.  

12.  Entitlement to service connection for a skin disorder, to include photo dermatitis.  

13.  Entitlement to service connection for hypertension.  


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran and her brother


ATTORNEY FOR THE BOARD

B. R. Mullins, Counsel






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INTRODUCTION

The Veteran had active service from July 1980 to November 1980, from September 1990 to November 1990, and from February 2003 to April 2004 with service in Southwest Asia.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, denying the claims currently on appeal.  

The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge in January 2013.  A transcript of this hearing has been prepared and incorporated into the Veteran's electronic record.  

While the Veteran's appeal was pending before the Board, the RO issued a rating decision in March 2012 granting the Veteran's claims of entitlement to service connection for a low back condition, a right ankle condition and right big toe arthritis.  Since this grant constituted a full grant of the benefits sought on appeal, these claims are no longer in appellate status.  AB v. Brown, 6 Vet. App. 35, 39 (1993).

The issues of entitlement to service connection for a psychiatric disorder (to include PTSD, depression and for eligibility to treatment), a neck condition, COPD, sinus and allergy problems, a left knee condition, a right knee condition, a right shoulder condition, tinnitus and a skin disorder are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.






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FINDINGS OF FACT

1.  The Veteran has not been diagnosed with hearing loss, for VA rating purposes, in either ear.  

2.  The Veteran does not have a current diagnosis of chronic bronchitis.  

3.  The Veteran does not have a current diagnosis of hypertension.  


CONCLUSIONS OF LAW

1.  The criteria for establishing service connection for bilateral hearing loss have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2012).

2.  The criteria for establishing entitlement to service connection for chronic bronchitis have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).

3.  The criteria for establishing entitlement to service connection for hypertension have not been met.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  
	
Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error.  Sanders v. Nicholson, 487 F.3d 881 (2007).  VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law.  Id.  However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the CAVC take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2).  Shinseki v. Sanders, 556 U.S. 396 (2009).  In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice.  Id.

A letter sent to the Veteran in October 2009 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter.  The letter informed her of what evidence was required to substantiate the claim and of her and VA's respective duties for obtaining evidence.  Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content.  Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting her in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The record contains copies of the Veteran's active service treatment records and Army Reserve treatment records.  Also, the Veteran received a VA audiometric examination in December 2011, and VA has obtained these records as well as the records of the Veteran's outpatient treatment with VA.  Copies of private treatment records have also been incorporated into the claims file.  Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claim that has not yet been obtained.  

The Board recognizes that the Veteran has not been afforded VA examinations for her claimed disabilities of chronic bronchitis and hypertension.  However, the Veteran was not prejudiced by the lack of examination.  In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  

These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. 

In this case, no examination is necessary in order to adjudicate these claims because there is no competent evidence of a currently diagnosed disability.  The Veteran's blood pressure readings have routinely been below the levels required for a finding of hypertension and medical evidence of record reveals that bronchitis resolved upon treatment.  Without evidence of a current disability, a VA examination is not required.  

Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist her in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

Relevant Laws and Regulations

Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

In the absence of proof of a present disability there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service.  Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).  

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b).

Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as sensorineural hearing loss, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012).  

When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances.  See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence).  


Bilateral Hearing Loss

The Veteran contends that she is entitled to service connection for bilateral hearing loss.  However, the evidence of record demonstrates that the Veteran does not suffer from hearing loss for VA rating purposes.  As such, service connection is not warranted.  

The Veteran's service treatment records reflect that she did not suffer from bilateral hearing loss upon separation from active duty.  According to an August 2004 Army Reserve Retention examination, pure tone thresholds, in decibels (dB), were:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
15
20
LEFT
5
5
0
15
10

The above results demonstrate that the Veteran was not suffering from hearing loss, for VA rating purposes, several months after her separation from active duty in April 2004.  For VA purposes, hearing impairment is considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz (Hz) is 40 dB or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hz are 26 dB or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  38 CFR § 3.385 (2012). 

Subsequent records confirm that the Veteran still does not suffer from hearing loss for VA rating purposes.  The Veteran was afforded a VA audiometric examination in December 2011.  The authorized audiological evaluation revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
RIGHT
10
5
5
20
25
LEFT
10
5
5
15
15

Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 percent in the left ear.  As such, the evidence demonstrates that the Veteran does not have a current diagnosis of hearing loss for VA rating purposes.  See id.  

The above evidence demonstrates that the Veteran is not entitled to service connection for bilateral hearing loss.  There is no evidence of a hearing loss disability following separation from active duty and there is no evidence of a present hearing loss disability.  There must be a current diagnosis of a disorder for service connection to be granted.  Hickson v. West, 12 Vet. App. 247, 252 (1999).  Without a medical diagnosis of hearing loss, the Board must deny the Veteran's claim.  See Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  

The Board notes that an April 2009 audiogram report from Adena Occupational Health notes that hearing loss was present in the right ear and that the Veteran suffered from mild hearing loss in the right ear.  However, a review of the associated audiogram reveals that the Veteran was not in fact suffering from hearing loss, for VA rating purposes, at this time.  Audiological evaluation revealed pure tone thresholds, in dB, to be:




HERTZ



500
1000
2000
3000
4000
RIGHT
5
0
5
15
30
LEFT
5
5
0
15
20

These results demonstrate that the Veteran was not in fact suffering from hearing loss of either ear, for VA rating purposes, at this time.  See 38 CFR § 3.385.  

As a final matter, the Board recognizes that the Veteran believes she is entitled to service connection for hearing loss.  While the Veteran is competent to testify to in-service noise exposure and subjective sensations of diminished hearing, these statements do not change the fact that objective testing has repeatedly demonstrated that the Veteran does not meet the statutory requirements for a diagnosis of hearing loss in either ear.  See id.  As such, her statements fail to indicate that she is entitled to service connection for bilateral hearing loss.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for bilateral hearing loss must be denied.

Hypertension

The Veteran also contends that she is entitled to service connection for hypertension.  However, the evidence of record does not reflect that the Veteran has been diagnosed with hypertension.  As such, service connection cannot be established.  

The Veteran's service treatment records are entirely silent as to a diagnosis of hypertension or treatment for elevated blood pressure.  Likewise, post-service medical records fail to reflect a diagnosis of hypertension.  According to the Veteran's August 2004 Army Reserve Retention examination, the Veteran had a systolic blood pressure of 124 millimeters (mm) and a diastolic blood pressure of 78 mm (124/78).  Hypertension is defined as diastolic blood pressure that is predominantly 90 mm or greater, or systolic blood pressure that is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm.  See 38 C.F.R. § 4.104, Diagnostic Code 7101.  Therefore, the Veteran was not suffering from hypertension as of this time.  

A February 2009 VA outpatient treatment record reflects a blood pressure of 122/78 and a March 2009 record reflects a blood pressure of 107/76.  A September 2009 VA outpatient treatment record also reflects a blood pressure of 122/75.  These records reflect that the Veteran was still not suffering from hypertension.  See id.  A discussion of the Veteran's medical history associated with this treatment report also makes no mention of hypertension.  The record contains no further evidence diagnosing hypertension or reflecting elevated blood pressure readings.  Therefore, since there is no evidence of a diagnosed disability, service connection for hypertension cannot be established.  See Hickson, 12 Vet App. at 252 (holding that there must be a current diagnosis of a disorder for service connection to be granted.  See Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  

During her January 2013 hearing, the Veteran testified that her primary care physician had diagnosed her with hypertension.  However, this assertion is not supported by the evidence of record.  VA treatment records and private treatment records fail to reflect a diagnosis of hypertension or elevated blood pressure readings.  

The Board notes that the Veteran argued during her hearing that her hypertension was secondary to her psychiatric disability in that her blood pressure would rise when she was anxious.  However, brief periods of elevated blood pressure are not evidence of a chronic disability.  To support a diagnosis of hypertension, the blood pressure readings must be taken two or more times on at least three different days.  See 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1) (2012).  The record contains no such evidence.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for hypertension must be denied.

Bronchitis

The Veteran also contends that she is entitled to service connection for bronchitis.  However, as outlined below, the preponderance of the evidence of record does not reflect that the Veteran has been diagnosed with chronic bronchitis or any associated symptomatology since her separation from active duty.  As such, service connection for bronchitis cannot be established.  

Service treatment records do not reflect that the Veteran was diagnosed with chronic bronchitis during her active military service.  The Veteran did report a history of chronic cough and shortness of breath with wheezing in her report of medical history associated with her 2004 post-deployment medical assessment.  However, the record does not reflect that the Veteran was diagnosed with chronic bronchitis related to this.  The Veteran also reported a history of bronchitis in her report of medical history associated with her August 2004 Army Reserve retention examination.  It was noted that the Veteran had wheezing and coughing related to colds and flu and that bronchitis would come and go every few years.  An evaluation of the lungs and chest was deemed to be normal at this time, however.  

Following active duty in June 2005, a chest X-ray was taken because the Veteran was experiencing a chronic cough.  The lungs were deemed to be clear and the chest was found to be normal.  

The Veteran was also treated by a private physician with the initials J.M. in August 2008.  The Veteran reported that she was diagnosed with bronchitis at the end of July.  The Veteran was treated with a Z-Pak with improvement in her cough.  However, the Veteran was still endorsing shortness of breath, especially with activity.  The physician noted that the Veteran continued to smoke.  The Veteran was diagnosed with bronchitis with a significant amount of bronchospasm.  It was also noted that she may have early emphysema based on her extensive smoking history.  A September 2008 record from the same physician notes that the Veteran' cough had resolved and that she still had limited breath.  Bronchitis was no longer diagnosed, but COPD was noted.  An April 2009 record again makes no mention of bronchitis.  COPD was again noted and felt to be under good control.  The Veteran was encouraged to discontinue smoking.  

The Veteran was treated by VA on an outpatient basis in March 2009.  It was noted that the Veteran denied shortness of breath, difficulty breathing or chest pain.  A September 2009 VA outpatient treatment record also notes that the Veteran smoked 1 to 2 packs of cigarettes per day.  Chronic bronchitis was not mentioned in her medical history at this time.  Another September 2009 VA outpatient treatment record also reflects that the Veteran's lungs were clear to auscultation, bilaterally.  

The record also contains an evaluation report from the Adena Regional Health System dated October 2009.  According to this report, the Veteran denied coughing, shortness of breath or wheezing.  

The preponderance of the above evidence demonstrates that the Veteran is not entitled to service connection for chronic bronchitis.  The record does not reflect that she has been diagnosed with chronic bronchitis at any time since her separation from active duty.  The Board recognizes that the Veteran reported having bronchitis that would come and go in August 2004 and, that an August 2008 record reflects that the Veteran was diagnosed with bronchitis in July 2008.  However, this record also reflects that the Veteran's bronchitis resolved upon treatment.  The Veteran was noted to still have shortness of breath following treatment, but this was related to possible early onset emphysema due to an extensive smoking history.  The record contains no evidence to demonstrate that the Veteran suffers from chronic bronchitis or any chronic residuals of an in-service bout with bronchitis.  As such, service connection is not warranted.  See Hickson, 12 Vet App. at 252 (holding that there must be a current diagnosis of a disorder for service connection to be granted.  See Degmetich, 104 F.3d at 1333 (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation).  

The Board recognizes that the Veteran believes she is entitled to service connection for chronic bronchitis.  She testified in January 2013 that she believed her bronchitis was related to her COPD and that she had been told this by her family physician.  The evidence of record does not support this assertion, however.  Records from 2008 reflect that bronchitis resolved upon treatment.  While the Veteran was also noted to have COPD at this time, there was no suggestion that these two disabilities were somehow related.  Finally, the record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to diagnose herself with chronic bronchitis either.  See Jandreau, 492 F.3d at 1377 (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board").  Since filing her claim, the evidence has not reflected a chronic cough or any diagnosis of bronchitis associated with the Veteran.  As such, the Veteran's testimony fails to demonstrate that she in fact suffers from a chronic disability related to bronchitis.  

Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable.  The Veteran's claim of entitlement to service connection for chronic bronchitis must be denied.


ORDER

Service connection for bilateral hearing loss is denied.  

Service connection for chronic bronchitis is denied.  

Service connection for hypertension is denied.  







REMAND

Tinnitus

The Veteran contends that she is entitled to service connection for tinnitus.  Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Veteran's service treatment records fail to reflect that she suffered from any symptomatology associated with tinnitus during active military service.  However, according to a March 2004 post-deployment medical assessment, the Veteran did report having ear, nose or throat trouble.  While tinnitus was not specifically noted, an August 2004 Army Reserve Retention examination report reflects that the Veteran's ear drums were "abnormal."  Specifically, the Veteran was suffering from what appears to be an "injected" tympanic membrane (TM).  However, the Veteran herself denied having ear, nose or throat trouble in her report of medical history associated with this examination.  

Subsequent evidence is also contradictory as to whether the Veteran currently suffers from symptomatology of tinnitus.  According to a December 2011 VA audiology examination report, the Veteran denied ear noises such as ringing, buzzing, hissing or other ear sounds, and she replied "no" when asked if she recalled any such ear noises in the past.  However, during her January 2013 hearing, she testified that she did in fact occasionally have tinnitus and that this had been occurring since her return from active duty.  

In light of the conflicting evidence above, the Veteran should be scheduled for a VA examination to determine whether or not she currently suffers from chronic tinnitus.  If so, the examiner is asked to opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service, to include the abnormal TM noted in August 2004 and the Veteran's report of ear, nose or throat trouble following her deployment in 2004.  

Psychiatric Disability, to Include PTSD

The Veteran has also alleged entitlement to service connection for numerous psychiatric disabilities, including PTSD, anger issues, panic attacks, a sleep disorder, depression, mood swings, anxiety and major depressive disorder.  Unfortunately, a remand is necessary on these issues as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

Initially, the Board notes that many of the Veteran's claimed psychiatric disabilities appear to be symptoms associated with a psychiatric disorder, such as sleep impairment or anger issues.  Nonetheless, it is clear from the Veteran's claim that she is seeking service connection for all of her psychiatric symptomatology, regardless of how it has been classified.  In Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Court held that a claimant seeks service connection for the symptoms of a disability, regardless of how those symptoms are diagnosed or labeled.  Therefore, the Veteran is essentially seeking service connection for any diagnosed psychiatric disability.  

The Veteran's service records demonstrate that she served in Iraq from March 2003 to March 2004.  According to a copy of a letter written by the Veteran in September 2003, her camp experienced 6 consecutive mortar blasts the previous night.  She also submitted a document from the Army awarding her the combat action badge for actively engaging or being engaged by the enemy.  

The Veteran also reported in her post-deployment medical assessment following her period of active duty from 2003 to 2004 that she did experience nervous trouble.  She denied suffering from anxiety, depression or excessive worry, nightmares or frequent trouble sleeping, however.  Private treatment records and VA treatment records reflect treatment for symptoms of anxiety and depression starting in 2007.  In her claim of September 2009, the Veteran described feeling of anxiety and excessive alcohol consumption following her separation from active duty.  

The Veteran was previously afforded a VA examination for PTSD in January 2010.  At this time, it was determined that the Veteran did not meet the criteria for a diagnosis of PTSD under the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV).  However, she was noted to have Axis I diagnoses of dysthymic disorder, major depressive disorder and an anxiety disorder.  Regrettably, no opinion was offered as to whether any of these disabilities manifested during, or as a result of, active military service, or, if they were permanently aggravated as a result of a period of active service.  Such an opinion is required before appellate review may proceed on these claims.  

In addition, the record contains a VA treatment record dated December 2009 in which it was noted that the Veteran suffered from a long-standing major depressive disorder probably dating back to her teenage years.  The Veteran denied this during her January 2013 hearing.  For purposes of basic entitlement to service-connection, 38 U.S.C.A. § 1111 provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  In the present case, the June 1980 examination makes no mention of previously existing psychiatric symptomatology or diagnoses.  Therefore, it is not clear as to whether the Veteran had a preexisting "defect, infirmity or disorder" at the time of enlistment into active duty.  An examination is necessary so that an opinion can be offered as to whether there is clear and unmistakable evidence of a preexisting psychiatric disorder.  

For service connection claims involving a preexisting injury or disease, 38 U.S.C.A. § 1153 provides that a preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  Therefore, if there is clear and unmistakable evidence of a preexisting psychiatric disability, the examiner should also opine as to whether there is clear and unmistakable evidence to suggest that this disability was not permanently aggravated as a result of military service, to include as due to her combat exposure in Southwest Asia from 2003 to 2004.  

Finally, regarding the Veteran's claim of entitlement to service connection for psychosis for the purposes of establishing eligibility to treatment, the Board finds that this issue is inextricably intertwined with the issue currently on appeal.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered).  According to 38 U.S.C. § 1702, any veteran of World War II, the Korean Conflict, the Vietnam era or the Persian Gulf War who developed an active psychosis (1) within two years after discharge or release from the active military, naval or air service, and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War, shall be deemed to have incurred such disability in the active military, naval or air service.  Likewise, any veteran of the Persian Gulf War who develops an active mental illness (other than psychosis) shall be deemed to have incurred such disability in the active military, naval or air service if such veteran develops such disability (1) within two years after discharge or release from the active military, naval or air service; and (2) before the end of the two-year period beginning on the last day of the Persian Gulf War.  As this claim is being remanded to determine when the Veteran's psychiatric disability first manifested, evidence obtained on remand could be vital to this issue.  

Cervical Spine

The Veteran also contends that she is entitled to service connection for a cervical spine disability.  Unfortunately, a remand is necessary on this issue as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In her post-deployment health assessment from 2004, the Veteran endorsed "[r]ecurrent neck or back pain or any back problems."  She also endorsed "[r]ecurrent back pain or any back problem" in her report of medical history associated with her August 2004 Army Reserve retention examination.  However, it is not clear from these records whether the Veteran was referring to her neck or her back at these times.  

Post-service treatment records reflect that the Veteran has since been diagnosed with a current neck disability.  According to a May 2009 magnetic resonance image (MRI), the Veteran suffered from degenerative disc disease localized to the C5-6 and C6-7 levels where there were broad-based disc protrusions.  

Finally, during her January 2013 hearing, the Veteran testified that she believed her neck pain was due to the wear and tear exhibited on her neck while riding in the deuce and a half during service.  The Veteran also indicated in her claim of September 2009 that she experienced neck pain during military service after heavy lifting.  

In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration.  These four factors are:  (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4).  

With respect to the third factor above, the Court of Appeals for Veterans Claims has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. 

In the present case, there is evidence of a current disability of the cervical spine.  The Veteran also endorsed neck or back pain post-deployment in 2004.  Finally, the Veteran has provided lay evidence of neck pain during and since military service.  Lay assertions may serve to support a claim for service connection when they relate to the occurrence of events that are observable as a lay person or the presence of a disability or symptoms of a disability that are subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the existence of a disability even when not corroborated by contemporaneous medical evidence).  As such, the McLendon criteria have been met and the Veteran must be afforded a VA examination regarding the etiology of her current cervical spine disability before appellate review may proceed.  

COPD

The Veteran also contends that she is entitled to service connection for COPD.  Unfortunately, a remand is necessary on this issue as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In the present case, the record reflects a long history of cigarette smoking.  A Veteran's disability or death shall not be considered to have resulted from personal injury suffered or disease contracted in the line of duty in the active military, naval or air service on the basis that it resulted from injury or disease attributable to the use of tobacco products by a veteran during service.  38 U.S.C.A. § 1103 (West 2002); 38 C.F.R. § 3.330 (2012).  

However, the Veteran also asserted in September 2009 that she was exposed to asbestos during her active military service.  She also endorsed a history of shortness of breath in her report of medical history associated with her 2004 post-deployment medical assessment.  In light of the conflicting evidence of record, the Board finds that a VA examination must be provided to the Veteran to determine the etiology of her currently diagnosed COPD.  A complete rationale must be provided for all opinions offered.  

Sinus and Allergy Problems and a Skin Disorder

Unfortunately, a remand is necessary on these issues as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

An April 2003 service treatment record notes that the Veteran had a possible allergic reaction.  There were raised areas on both arms with itching.  Another April 2003 record diagnosed this as photodermatitis while another record diagnosed this as solar urticaria.  A May 2003 record also notes that the Veteran was suffering from dermatitis and that she took Prednisone, Allegra and Atarax at this time.  

A post-service treatment record dated June 2006 notes that the Veteran had a pruritic rash for the last 5 days on her back, abdomen, arms and upper legs.  It was noted that the Veteran almost cancelled her appointment because it had gone away after taking over the counter Benadryl.  The Veteran was diagnosed with an unspecified rash at this time.  

According to a July 2009 Army record, while attending active duty at Sierra Army Depot, the Veteran's face and eyes swelled with discomfort, pain and itching.  It was noted that this developed after working in the sun, sand and wind.  It was determined that the Veteran had an allergic reaction to an unknown agent while in the line of duty.  

In light of the above evidence, the Veteran should be scheduled for a VA examination to determine whether she suffers from a chronic disability manifested by sinusitis and/or allergies.  The record reflects that the Veteran was taking medications such as Allegra and Atarax during her active military service - both medications can be used to treat allergy symptoms.  The Veteran also testified in January 2013 that she continued to suffer from sinus and allergy problems since military service.  As such, a VA examination is necessary in order to determine whether the Veteran suffers from a chronic disability manifested by sinusitis and/or allergies, and if so, whether this disability manifested during, or as a result of, active military service.  See McLendon, 20 Vet. App. at 79.  

In addition, the Veteran should be scheduled for an additional VA dermatological examination.  The Board recognizes that the Veteran was previously afforded a VA examination for the skin in December 2011.  Regrettably, this examination is not sufficient for VA rating purposes.  See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  The examiner opined that the Veteran's current skin condition was less likely than not related to military service because it was not consistent with photo dermatitis or the residuals of such a condition.  However, records reflect a number of different diagnoses in addition to photo dermatitis, including dermatitis and solar urticaria.  Furthermore, no opinion was offered as to whether the Veteran's current skin disability might otherwise be related to military service.  The Veteran served in Southwest Asia and she testified in January 2013 to suffering a chemical burn during a period of Active Duty for Training (ACDUTRA).  

Additionally, the Board notes that the Veteran served in the Persian Gulf.  As such, the provisions of 38 C.F.R. § 3.317 are for application.  In the instant case, it must be determined whether the Veteran has any signs or symptoms involving the skin related to an undiagnosed illness or a medically unexplained chronic multisymptom illness.  These questions can only be addressed by a medical professional by way of a medical opinion.

Finally, the Veteran's representative asserted in January 2013 that they had a statement in their possession from the Veteran's physician concluding that she had a chronic former dermatitis condition.  The record does not reflect that this statement has been associated with the claims file.  The Veteran should be contacted and asked to provide VA with a copy of this statement.  If she does not have a copy of this statement, authorization and consent should be obtained from the Veteran so that VA can attempt to obtain records from this physician for her.  


Bilateral Knees and Right Shoulder 

Finally, the Veteran contends that she is entitled to service connection for disabilities of the knees, bilaterally, as well as a right shoulder disability.  Unfortunately, a remand is necessary on these issues as well to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

In her March 2004 report of medical history associated with her post-deployment medical assessment, the Veteran reported a history of painful joints.  However, the record does not reflect which joints were being referred to.  In her August 2004 Army Reserve retention examination, the Veteran reported that she suffered from arthritis.  It was noted that the Veteran indicated she suffered from arthritis in the right toe, the right knee, the right shoulder and the low back.  The Veteran was deemed qualified for further service, although it was noted that she had significant defects, including arthritis of the knees, bilaterally, as well as arthritis of the right shoulder.  

In light of the above evidence, the Board finds that the Veteran should be afforded a VA examination of the joints.  Specifically, she should be examined to determine whether she suffers from any disability of the right shoulder and either knee that manifested during, or as a result of active military service.

Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records prepared since July 2011 (the most recent record from the Chillicothe, Ohio VA Medical Center (VAMC) incorporated into the Veteran's electronic file).  

2.  Contact the Veteran and ask her to provide VA with any additional private treatment records she has in her possession, to include the statement she referenced in January 2013 where her physician diagnosed her with a chronic former dermatitis.  If the Veteran does not have copies of these records, then after securing any necessary authorization from her, VA should obtain all identified treatment records.  All reasonable attempts should be made to obtain such records.  If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file.  The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e).

3.  The Veteran should be scheduled for a VA examination before an audiologist regarding her claimed tinnitus.  The Veteran's claims file and a copy of this remand must be made available for review by the examiner assigned to the Veteran's case.  The examiner is asked to perform all indicated tests and studies and determine whether the Veteran suffers from chronic tinnitus.  If so, the examiner is asked to opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service, to include as due to in-service noise exposure or her history of ear, nose or throat problems reported following her deployment in 2004.  A complete rationale for all opinions offered must be provided, and the Veteran's lay statements regarding her history should be considered and discussed.  

4.  The Veteran should also be scheduled for a VA psychiatric examination.  The claims file and a copy of this remand must be made available to the physician designated to examine the Veteran.  All indicated tests and studies, including psychological testing, should be accomplished, and all clinical findings should be reported in detail and correlated to a specific diagnosis (es).  

The examiner should address the following:

(a)  What is the appropriate diagnosis (es) associated with the Veteran's psychiatric symptomatology? 

(b) If PTSD is diagnosed, can the Veteran's PTSD be related to her reported stressors, including mortar fire while serving in Iraq?  The Veteran's DD-214 confirms that she was stationed in Kuwait or Iraq from March 2003 to March 2004 and that she was in an imminent danger pay area.  Specifically, the examiner should opine as to (i) whether this stressor is adequate to support a diagnosis of PTSD, (ii) whether it is consistent with the places, types, and circumstances of the Veteran's military service, and (iii) whether the Veteran's symptomatology is related to this claimed stressor.  

(c) If the Veteran is found to have a psychiatric disorder(s) other than PTSD, the examiner should opine as to whether it is at least as likely as not that this disorder(s) manifested during, or as a result of, the Veteran's military service.  

(d) Finally, based on a review of the record, to include the service treatment records, post-service medical records, and lay statements, did a psychiatric disability clearly and unmistakably pre-exist her entry into active duty?

If so, is there clear and unmistakable evidence that any pre-existing psychiatric disability did not undergo an increase in the underlying pathology during service, i.e., was aggravated during service?

The examiner should note that aggravation is defined for these purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation and identify that aspect of the disability which is due to aggravation. 

If there was an increase in severity of the Veteran's psychiatric disability during service, was that increase due to the natural progress of the disease, or was it above and beyond the natural progression?

A complete rationale for all opinions expressed must be provided and the Veteran's lay statements regarding her symptomatology and her history must be considered and discussed.  

5.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine the etiology of her currently diagnosed COPD.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this case.  All indicated tests and studies should be performed, and the examiner should confirm whether the Veteran suffers from chronic COPD.  If so, the examiner should opine as to whether it is at least as likely as not that this disability manifested during, or as a result of, active military service, to include as due to exposure to asbestos.  A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding her asbestos exposure and chronic symptomatology should be considered as well.  

6.  The Veteran should also be scheduled for a VA examination before an appropriate physician to determine whether she suffers from a chronic disability associated with sinusitis or allergies.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this case.  All indicated tests and studies should be performed, and the examiner should confirm whether the Veteran suffers from any chronic disability.  If so, the examiner should opine as to whether it is at least as likely as not that this disability(s) manifested during, or as a result of, active military service, to include as due to her service in Southwest Asia.  A complete rationale must be provided for all opinions offered, and the Veteran's lay statements should be considered as well.  

7.  The Veteran should also be scheduled for a VA dermatological examination before an appropriate physician.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this case.  All indicated tests and studies should be performed, and the examiner should confirm whether the Veteran suffers from any chronic skin condition.  If so, the examiner should opine as to whether it is at least as likely as not that this disability(s) manifested during, or as a result of, active military service, to include as due her in-service photo dermatitis and/or solar urticaria, or, as a result of her service in Southwest Asia.  

The examiner should also address whether the Veteran has objective indications of a skin disability.  If so, the examiner should address 1) whether it is a diagnosed condition or an undiagnosed condition; and 2) whether it is a medically unexplained chronic multisymptom illness.

The examiner should note that a medically unexplained chronic multisymptom illness means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities.

A complete rationale must be provided for all opinions offered, and the Veteran's lay statements should be considered as well.  

8.  Finally, the Veteran should be scheduled for a VA examination before an appropriate physician regarding her claimed joint disorders.  The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination.  The examiner is asked to perform all indicated tests and studies, and determine whether the Veteran suffers from a chronic disability of a) the right shoulder, b) the right knee and c) the left knee.  If so, the examiner should address the following:  

(1) Is it at least as likely as not that any disability of the right shoulder manifested during, or as a result of, active military service.  

(2) Is it at least as likely as not that any disability of the right knee manifested during, or as a result of, active military service.  

(3) Is it at least as likely as not that any disability of the left knee manifested during, or as a result of, active military service.  

A complete rationale must be provided for all opinions offered and the Veteran's lay statements regarding the history and onset of her symptomatology must be considered and discussed.  

9.  The agency of original jurisdiction (AOJ) should then carefully review the medical opinions obtained to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the AOJ should return the case to the examiner for completion of the inquiry.  

10.  The AOJ should then readjudicate the claims on appeal in light of all of the evidence of record.  If an issue remains denied, the AOJ should provide the Veteran a supplemental statement of the case as to the issue on appeal, and afford her a reasonable period of time within which to respond thereto.  

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).




______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs